We’ve oft written about the abject phoniness that poses as “free trade” in Washington, D.C.

Where our trading partners impose all sorts of taxes and import limits on our stuff. And we do nothing of the sort to theirs – flinging wide open our worlds-largest-market to any and all comers.

Where our trading partners’ governments subsidize the living daylight out of their products. Which they then bring to global market – bringing with them the inherent, price-reducing advantages of all the government money behind them.

All of which woefully disadvantages our products – and their producers. Because our producers aren’t competing on anything remotely resembling a level playing field.

This decades-long inanity – has severely damaged our nation.

It has cost us millions of jobs. The Rust Belt – wasn’t always the Rust Belt. It used to be the heart of the world’s greatest manufacturing engine.

Gone are tens of thousands of plants and factories. Swap-outsourced – for government money checks, meth labs and opioid addictions.

Oh: But you can get a Communist Chinese TV at Walmart fo $20 less than you otherwise would – so that makes up for everything.

Speaking of Communist China….

Republican President Donald Trump campaigned for his current gig – against the bipartisan DC headwind: “Manufacturing jobs are never coming back.”

And things will additionally continue to improve – because Trump is also working on the third leg of the economy stool: Improving DCs awful trade track record.

And just in time. Because China has also been stealing the next generation of jobs – generated by and around the creation of Intellectual Property (IP). Having cornered much of our manufacturing job market – China is now moving on our world-leading IP creation.

Trump has been rightly decrying these sorts of awfulness…for decades. He campaigned for President – repeatedly denouncing China’s massive IP theft.

And after working domestically to address regulatory and tax overreach – in March Trump announced steel and aluminum tariffs on China. And did so – citing China’s IP theft as a principal reason therefore. Trump’s tariff total – topped out at $150 billion. Or…less than 25% of China’s annual IP theft from us.

The same DC fake free traders – who have spent several decades allowing to continue unabated this massive Chinese IP theft specifically and awful trade generally – screeched about Trump and his “Trade War.”

News flash, folks: We’ve been in a trade war with China…for decades. They declared it. And until Trump – only they were waging it.

I publicly, repeatedly said Trump’s tariffs were exactly the right thing to do.

If you’ve been punched in the face for half a century and done nothing about it – to get it to finally stop…you have to start punching back.

China has been Muhammad Ali-ing us forever. It’s about time we finally got up off the mat.

Now…I do not like tariffs. Nor do I like artificial government limits imposed on trade. Nor do I like government subsidies of products.

I do not like any of these things – because I like free trade. Not the fake “free trade” with which DC has for decades destroyed us. I like actual, real free trade.

But if I have to swallow some Trump tariffs – to address four times that amount in IP theft – I am all the way down with it.

Trump is threatening to tax some China fruit – to save the US IP fruit tree. Because that tree – is MUCH more important than that fruit.

If we have to pay more for steel and aluminum products – in exchange for saving domestic IP production – then hand me my wallet…I’ll happily pay.

But I also supported Trump’s steel and aluminum tariffs – because I knew they would never, ever actually be imposed. Because I know – as Trump does – China needs us…WAY more than we need them.

Who was right? Trump and I – or the DC Smart Set?

China Trade War ‘On Hold’ as Trump Pauses Tariffs: “The administration had threatened $50 billion to $150 billion in tariffs on Chinese goods as a way to deter the theft of U.S. intellectual property and forced transfers of technology. Beijing countered by threatening tariffs on $50 billion worth of U.S. farm, chemical and other exports.

“But (Treasury Secretary Steven) Mnuchin said Sunday that the two sides agreed on a framework for reducing the U.S. trade deficit with China and addressing technology trade irritants during high-level talks on Thursday and Friday….

“U.S. Trade Representative Robert Lighthizer, one of the driving forces behind the intellectual property theft investigation that led Trump to threaten tariffs on $50 billion to $150 billion worth of Chinese goods, said in a statement that the two sides have “agreed on a framework to address the very serious issues raised” in that probe. That includes putting the tariffs on hold, but keeping them in reserve if needed.”

Oh look – the Chinese blinked.

Now, I am not an idiot. Neither is Trump (despite widespread reporting to the contrary). I do not trust the Communist Chinese – as far as I can throw their Great Wall.

But we just watched them go – in just two months – from full-on bluster and threats of retaliation…to a unilateral buckling.

Because they know what we all should – that we can afford a “trade war” WAY more than they can.

And most importantly:

I think saving our status as the world leader in IP creation and implementation – is vitally, crucially, fundamentally important to our economic future.

As the late, inordinately great Andrew Breitbart wisely noted: “Politics is downstream from culture.”

Our politics is so awful, awfully Leftist – in no small part because our culture is so awful, awfully Leftist.

Our media of all sorts – news, Hollywood, music, literature – is corrupt nigh to the core. And that rot – pollutes the waterways all the way down to our politics.

So ANY cultural glimmer of sanity and reason to pierce the dark veil – should be warmly welcomed.

Rapper Kanye West is currently offering one such glimmer. West is thankfully in the midst of melting down a decent portion of the Democrats’ horde-enforced lockdown on black people and their votes.

It all began with what what in saner times would be the most innocuous of pro-President Donald Trump comments. Delivered – as many things these days are – via Twitter:

Really – this is inordinately innocuous. But every single word of this – is highly problematic for Democrats. Who loathe individual thought – and rely on horde violence to enforce any deviation from the Leftist mind meld. Especially when it comes to blacks – who have for decades overwhelmingly voted for Democrats.

West has hereby committed Leftist racial heresy.

Thankfully, West did what Trump also does when confronted by the hordes. He didn’t back down – he doubled down. Appearing on TMZ, West said:

“You’re choosing to enslave peoples’ minds. You’re choosing to not let the truth be free….

“It’s the mob. The mob tries to tell you what to think. The mob tries to make all blacks be Democrats for food stamps. It’s the mob.”

Yes, I know West hasn’t spent his life writing treatises on Austrian economics and traditional social doctrine. And he hasn’t now arrived at 100% conserva-tarian-ism.

But…politics is downstream from culture. And if this modern-day cultural icon is carpet-bombing his tens of millions of fans with these eminently reasonable truths – we should at the very least appreciatively applaud his efforts.

We’ll take wisdom – wherever it turns up.

Which brings us to former WWE wrestler Glenn Jacobs – better known by his nom de singlet Kane.

Because for the media, seeing Libertarians and Conservatives – is like being on safari in Africa. They are examining what are for them weird and dangerous animals – from which they would very much like to distance themselves – and the nation.

But while Kanye West appears to have recently arrived at Reality – Jacobs seems to have thought about these things for a very long time. His less government ideology is very much fully-formed – and he is more than able and willing to discuss it.

Perhaps the most interesting portion of the exchange – was Jacobs deviating from what seems to be dominate Libertarian doctrine on Intellectual Property (IP).

Most Libertarians are…awful on IP. They fly full-speed into the headwinds of human nature – and pretend that if you allow universal theft of the work product of IP producers – IP producers will continue to produce IP anyway.

Which is…simply, titanically stupid. Intellectual Property – is property. If we allow universal theft of a farmer’s crops – no one will ever farm again. Because…duh. If we allow universal theft of IP – no one will ever create IP again. Because…duh.

“You can completely lose innovation – because there is no profit motive. Why would I want to go out there and work really hard – and as an entrepreneur put my capital and put my time into research and development and bring a product to market – when I’m not going to be able to keep the profits and the fruit of my labor? The incentives are completely, completely perverted and distorted.”

The following post is a joint effort by Jennifer Davis (collections text) and Betty Lupinacci (gazette curation and photo).

Today, April 26, is World Intellectual Property Day. At the Law Library, one subject matter area most frequently requested by patrons from our collections is intellectual property law. Since our foreign law specialists are frequently producing new content about intellectual property law, and this is such a hot topic with our users, the Law Library always remembers this day.

China is an “alleged” IP thief – the way Don Juan was an “alleged” fan of women.

How Much Has the US Lost from China’s IP Theft?: “The United States Trade Representative, which led the seven-month investigation into China’s intellectual property theft and made recommendations to the Trump administration, found that ‘Chinese theft of American IP currently costs between $225 billion and $600 billion annually.’ Those numbers are in line with a 2017 report from the Commission on the Theft of American Intellectual Property.”

That’s a lot. Thankfully – after decades of our pretending Communist China isn’t…Communist China – we have elected a president who is in touch with Reality.

Read carefully what China is saying about IP – and it becomes clear what they are really doing.

Which is setting themselves up to be the recipient of the massive investment coin that will leave the US – as our IP protection continues to deteriorate.

What China is establishing – is the latest version of their China First protectionism.

China has spent the last several decades doing this to other US economic sectors – most notably manufacturing. The IP pattern and plot-line…is disarmingly similar.

The US spent decades imposing all sorts of stupid, expensive government policies on domestic producers. High taxes and countless regulations – followed by even higher taxes and even more regulations.

Thereby making US domestic production…heinously unattractive.

Meanwhile, we allowed China to impose all sorts of impediments to our products entering their market. High tariffs and low import limits – followed by even higher tariffs and even lower import limits.

All the while, our government imposed relatively little government of any kind on imports. As but one of billions of examples: As Trump Tweeted, a car entering the US market – pays a 2.5% tariff. The same car entering China’s market – pays a 25% tariff. Because that’s equitable and fair.

Oh: And if US companies want to do business in China – China demands they hand over their technology and IP. Because that’s fair. Also about which we have done…absolutely nothing.

All of which makes US domestic production…even more heinously unattractive. And moving instead out of the US and into China…more and more alluring.

So US companies have spent the last several decades – making sense. Taking millions of manufacturing jobs out of the US – and into China. Because math.

And this blueprint – is exactly the model China is looking to replicate with IP.

For China – so far, so good. In no small part because we are replicating our stupidity.

We have spent the last decade-plus passing really stupid anti-IP laws.

And the Barack Obama Administration came up with a whole new, titanically stupid way to attack IP.

And more completely ridiculous statements like this: “Shen pointed out that the results of the Section 301 Investigation of China by the US ignores the objective facts that China has strengthened intellectual property protection, and has always insisted on the equal treatment of intellectual property rights of both domestic and foreign enterprises.”

“China…has always insisted on the equal treatment of intellectual property rights of both domestic and foreign enterprises”…? Ladies and Gentlemen – your Joke of the Day.

By Memorandum Opinion entered by The Honorable Richard G. Andrews in the IPA Technologies, Inc. v. Amazon.com, Inc. et al., Civil Action No. 16-1266-RGA (D. Del. March 31, 2018) (consolidated), the Court granted Defendants’ motions to dismiss as to claim 1 of U. S. Patent No. 6,742,021 (“the ‘021 patent”), claim 1 of U. S. Patent No. 6,523,061 (“the ‘061 patent”), and claim 1 of U. S. Patent No. 6,757,718 (“the ‘718 patent”) after finding that those claims are each drawn to an abstract idea and that none of them provide an inventive concept. In%) of its findings, the Court noted, among other things, that the subject claims are “aspirational in nature and devoid of any implementation details or technical description” that would permit the Court to conclude that any of the subject claims as a whole are directed to something other than the abstract idea of retrieving electronic data in response to a spoken request, and transmitting the retrieved data to a user. Id. at *18.

Suppose your employer asks you to create a Google account for the company. So you do. You set up everything yourself: Google Drive, Google+, Gmail–the works. You even set the password to your dog’s name. All of Google’s terms and conditions are accepted by you personally when creating the account. You proceed to use the account on behalf of the company, using Google Drive to store hundreds of company documents. Then you leave your job. Is the Google account yours? You created it, so are you free to make whatever use of the account you wish? Can you delete it?

Marcelo Cuellar thought so, but he was wrong. According to papers filed in Estes Forwarding Worldwide v. Cuellar in the Eastern District of Virginia, here are the facts. Cuellar joined Estes Forwarding Worldwide (“EFW”)–a transportation logistics company–in 2010. EFW has developed trade secrets relating to the best transportation solutions for various types of shipments, including information about type of freight, freight dimensions, routing decisions, vendor selection, and so on. It keeps this information in spreadsheets and other electronic documents.

For whatever reason, one of EFW’s customers had certain IT restrictions in place that prohibited EFW from installing its own IT infrastructure on-site at the customer’s location. So that it could share information about shipments from the location, EFW turned to the cloud. Cuellar, “acting on behalf of EFW and in furtherance of its business,” created a Google Drive account for EFW at the company’s request. The idea was that EFW’s on-site employees (all of whom had signed confidentiality agreements) could use the account to record information such as shipments being handled, routing decisions being made, cost information, etc. The login name was “efwsfo@gmail.com”. (The customer was located in San Francisco).

The Google account was used on a daily basis by EFW employees for several years. In 2015, Cuellar left the company and joined a competitor. In 2016, over a year after leaving EFW, he logged in to the Google account he had created several years earlier on behalf of EFW. He downloaded the entire collection of over 1900 spreadsheets, changed the password, and then deleted the account.

The CFAA is a fairly lengthy statute setting out a long list of prohibited activity. The court analyzed EFW’s claims under the following three provisions:

18 U.S.C. § 1030(a)(2)(C). To successfully state a claim based on a violation of § 1030(a)(2)(C), a plaintiff must allege that the defendant: (1) intentionally (2) accessed a computer (3) without authorization or in such a way that exceeded his authorized access, and (4) obtained information (5) from any “protected computer,” (6) resulting in a loss to one or more persons during any one-year period aggregating at least $5,000 in value.

18 U.S.C. § 1030(a)(4). Under this section, a plaintiff must plead that the defendant: (1) knowingly and with the intent to defraud (2) accessed a “protected computer” (3) without authorization or exceeding such authorization that was granted and (4) furthered the intended fraud by obtaining anything of value, (5) causing a loss to one or more persons during any one-year period aggregating at least $5,000 in value.

18 U.S.C. § 1030(a)(5)(C). Similarly, a plaintiff seeking to recover under this section must assert that the defendant: (1) intentionally (2) accessed a “protected computer” (3) without authorization, and, as a result of such conduct, (4) caused damage and loss (5) to one or more persons during any one-year period aggregating at least $5,000 in value.

Cuellar argued that he could not be held liable under any of these sections because he did not act “without authorization.” His position was that because he was the one who created the account, it was Google, rather than EFW, who was the source of his authority. In other words, so long as he did not violate Google’s Terms of Use, he did not act “without authorization.” Judge Hudson was not impressed. An employee is authorized to access a computer when the employer approves or sanctions admission to that computer. Although it was Cuellar who created the Google account, he “only did so while acting in the course and scope of his employment and for the benefit of EFW, not for personal use.” Thus, it was EFW who owned the account and had the right to authorize access to it. And clearly, EFW did not authorize Cuellar to go in and steal its proprietary data.

The court noted that the Hoofnagle v. Smyth-Wythe Airport case was different because in that case, the employee created a Yahoo! account that he used for both personal and business purposes. In Hoofnagle, the employee had created the account on his own accord and not at the direction of his employer. In Cuellar’s case, by contrast, the Google account was clearly created as a business account for the benefit of EFW and not a personal account.

Cuellar also argued that because he had created the account on-site at the customer’s location and there were no allegations of internet usage or interstate commerce, he had not accessed a “protected computer” within the meaning of the statute. The court did not find that argument compelling, either. Any computer with Internet access is effectively being used in interstate commerce or communication and is therefore a protected computer. Google Drive is stored in the cloud–the entire account was located exclusively on the Internet. It was therefore entitled to protection under the CFAA as a “protected computer.” The court denied Cuellar’s motion to dismiss the CFAA claim.

The SCA claim was also permitted to go forward, for much of the same reasons. The test for “without authorization” is the same under both the CFAA and the SCA. And the court rejected Cuellar’s argument that the spreadsheets on Google Drive did not qualify as “communication” protected by the SCA. The court noted that Congress has defined “electronic communication” broadly as “any transfer of signs, signals…data, or intelligence of any nature transmitted in whole or in part by a wire…system that affects interstate or foreign commerce.” 18 U.S.C. § 2510(12). Because EFW had alleged that information was transferred from one employee to another via updating the spreadsheet on the shared online account, that definition was satisfied.

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